New Illinois Medical Malpractice Law

Governor Quinn recently signed Public Act 97-1145 into law, changing one big thing and clarifying another big issue in Illinois medical malpractice cases.

First, attorneys fees on medical malpractice cases are now capped at 33 1/3% of the total recovery. There had previously been lower caps as case values increased. This is important for all attorneys to pay attention to for new or future cases. I think it’s a good thing, as med mal cases tend to be the toughest, longest, and most expensive cases personal injury lawyers handle.

The act finally codifies the current version of the 2-622 expert certification requirement:

(735 ILCS 5/2-622)  (from Ch. 110, par. 2-622)

Sec. 2-622. Healing art malpractice.

(a) In any action, whether in tort, contract or otherwise,

in which the plaintiff seeks damages for injuries or death by

reason of medical, hospital, or other healing art malpractice,

the plaintiff's attorney or the plaintiff, if the plaintiff is

proceeding pro se, shall file an affidavit, attached to the

original and all copies of the complaint, declaring one of the

following:

1. That the affiant has consulted and reviewed the

facts of the case with a health professional who the

affiant reasonably believes: (i) is knowledgeable in the

relevant issues involved in the particular action; (ii)

practices or has practiced within the last 6 years or

teaches or has taught within the last 6 years in the same

area of health care or medicine that is at issue in the

particular action; and (iii) is qualified by experience or

demonstrated competence in the subject of the case; that

the reviewing health professional has determined in a

written report, after a review of the medical record and

other relevant material involved in the particular action

that there is a reasonable and meritorious cause for the

filing of such action; and that the affiant has concluded

on the basis of the reviewing health professional's review

and consultation that there is a reasonable and meritorious

cause for filing of such action. If the affidavit is filed

as to a defendant who is a physician licensed to treat

human ailments without the use of drugs or medicines and

without operative surgery, a dentist, a podiatrist, a

psychologist, or a naprapath, the written report must be

from a health professional licensed in the same profession,

with the same class of license, as the defendant. For

affidavits filed as to all other defendants, the written

report must be from a physician licensed to practice

medicine in all its branches. In either event, the

affidavit must identify the profession of the reviewing

health professional. A copy of the written report, clearly

identifying the plaintiff and the reasons for the reviewing

health professional's determination that a reasonable and

meritorious cause for the filing of the action exists, must

be attached to the affidavit, but information which would

identify the reviewing health professional may be deleted

from the copy so attached.

(Howard Zimmerle is a medical malpractice lawyer in the Quad Cities of Illinois and Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

Washington Post – Wrong Site Surgery Happens 40 Times a Week

Holy crap… that’s about all I can say about that. This article is amazing. You would think that wrong site/wrong person surgery could be prevented (and it can), but it still happens. A lot.

All sorts of problems still happen with regularity. Surgery based on test results given to the wrong person. Flipped x-rays (really? even in the digital age where all x-rays are on a computer?). Marking the wrong side of the body or the wrong vertebra.

Several years ago, the National Quality Forum coined the term “never events” to describe medical errors that are almost entirely preventable. These include:

• wrong site/wrong patient surgeries,
• medication errors,
• wrong procedures,
• retained objects after surgery (clamps, sponges, etc),
• pressure ulcers or bedsores,
• injury due to incompatible blood or blood products,
• death or serious injury due to hypoglycemia

and several other very preventable but very serious errors. You can read more about them here.

The bottom line is that medical errors – even dumb ones – keep happening at a higher rate than they should. Even the staunch tort-reformers would have difficulty arguing that someone who is injured or the family of someone who dies from wrong site surgery or another one of these “never events” doesn’t deserve fair and full compensation. That’s where we come in.

(Howard Zimmerle is a medical malpractice and nursing home negligence lawyer practicing in Illinois and Iowa. He can be reached at hzimmerle [at] mjwlaw.com or 309-794-1660). 

Tip for Illinois Nursing Home Attorneys – Don’t Forget the Administrative Code!

One of the key jobs of any attorney who sues a nursing home for abuse, neglect, bad patient care, etc, is to establish the proper standard of care. All good nursing home malpractice attorneys know to look for the nursing home’s own procedures, as well as the Illinois Nursing Home Care Act and the federal OBRA regulations. Yet some forget that the State of Illinois has many specific regulations in the Administrative Code – Title 77, Chapter I, Part 300. I’d recommend taking a look at that before filing a nursing home case and discussing some of the relevant regulations with your experts.

(Howard Zimmerle is an attorney in Rock Island Illinois, who practices in the entire Quad Cities and surrounding area. He often handles cases against nursing homes and long term care facilities. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).